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Dunivan v. State

Supreme Court of Missouri, En Banc

July 21, 2015

HEATH A. DUNIVAN, Respondent,
v.
STATE OF MISSOURI and MISSOURI STATE HIGHWAY PATROL, Appellants

APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY. The Honorable Kenneth Hayden, Judge.

The state and patrol were represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general's office in Jefferson City.

Dunivan was represented by Chris Rasmussen of Deputy and Mizell LLC in Camdenton.

GEORGE W. DRAPER III, JUDGE. All concur.

OPINION

Page 515

George W. Draper III, Judge.

The Missouri Attorney General, the State of Missouri, and the Missouri State Highway Patrol (hereinafter, " the MSHP" ) appeal the circuit court's judgment overruling their motion to intervene in a sex offender registration matter filed by Heath A. Dunivan (hereinafter, " Dunivan" ) and the circuit court's judgment removing Dunivan from the Missouri sex offender registry. This Court holds the attorney general is permitted to intervene as a matter of right pursuant to Rule 52.12(a)(1) because section 27.060, RSMo 2000, permits the attorney general to " appear and interplead, answer or defend, in any proceeding or tribunal in which the state's interests are involved." This Court further holds the MSHP is permitted to intervene as a matter of right pursuant to Rule 52.12(a)(2) because the MSHP has an interest relating to the subject of the action due to its role in maintaining Missouri's sex offender registry that is not represented adequately by the local prosecuting attorney.

Page 516

The circuit court misapplied the law in overruling their motion to intervene. The circuit court's judgment is reversed, and the cause is remanded.

Factual and Procedural History

On October 13, 1993, Dunivan pleaded guilty to one count of second-degree sex abuse, section 566.110, RSMo 1993, which required Dunivan to register as a sex offender. On March 29, 2012, Dunivan filed a petition in Laclede County circuit court to be removed from Missouri's sex offender registry and to be relieved from his obligation to register as a sex offender. Dunivan's petition sought removal from the registry pursuant to Missouri's Sex Offender Registration Act, section 589.400.8, RSMo Supp. 2009.[1] Dunivan provided the Laclede County prosecuting attorney notice of his petition pursuant to section 589.400.9. This statute does not require notice be sent to the attorney general or the MSHP.

On May 7, 2013, the circuit court held a hearing on Dunivan's petition. The Laclede County prosecuting attorney represented the state. Dunivan testified about the allegations in his petition. The prosecuting attorney did not cross-examine Dunivan or offer any argument in opposition to Dunivan's petition. The circuit court granted Dunivan the relief he requested from the bench and subsequently entered a docket entry stating: " Court finds issues in favor of [Dunivan] and against [the state]." On May 20, 2013, the circuit court entered a written order that Dunivan be removed from the Missouri sex offender registry and relieved from his obligation to register as a sex offender. This order was not denominated a judgment nor was it directed at any party to take action to remove Dunivan from the registry.

On July 29, 2013, the attorney general and the MSHP received a copy of the circuit court's order. On August 19, 2013, the attorney general filed a motion to intervene as a matter of right pursuant to Rule 52.12(a) on behalf of itself and the MSHP, seeking to set aside the circuit court's order. In its motion to set aside, the attorney general argued that Dunivan's Missouri sex offender registration requirement was based upon an independent federal registration requirement and, therefore, Dunivan could not petition for removal from the Missouri sex offender registry pursuant to section 589.400.

The circuit court overruled the motion to intervene. The attorney general filed a notice of appeal with the Court of Appeals, Southern District. On February 25, 2014, the court of appeals issued a show cause order directing the attorney general to demonstrate why the intervention appeal should not be dismissed because the appeal was not taken from a final, appealable judgment. On March 6, 2014, the circuit court issued a judgment with respect to Dunivan's request for removal from the registry. The attorney general then sought an appeal from that final judgment. The court of appeals consolidated the cases and affirmed the circuit court's judgment overruling the attorney general's motion to intervene. The court of appeals did not reach the issue of whether the circuit court erred in removing Dunivan from Missouri's sex offender registry and relieving him of his obligation to register in the future. This Court granted transfer. Mo. Const. art. V, sec. 10.

Page 517

Standard of Review

The circuit court's judgment regarding intervention as a matter of right will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Johnson v. State, 366 S.W.3d 11, 20 (Mo. banc 2012). Intervention generally should " be allowed with considerable liberality." Id. ...


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